R. v. R.V.F., 2011 NSCA 71

NOVA SCOTIA COURT OF APPEAL Citation: R. v. R.V.F., 2011 NSCA 71 Date: 20110727 Docket: CAC 341847 Registry: Halifax Between: R.V.F. Appellant v. Her Majesty the Queen Respondent Restriction on publication: Pursuant to s. 110(1) and s. 111(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 Judges : MacDonald, C.J.N.S.; Beveridge and Bryson, JJ.A. Appeal Heard: April 15, 2011, in Halifax, Nova Scotia Held: Application for leave to appeal is dismissed, per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. and Bryson, J.A. concurring Counsel: Rickcola M. Slawter, for the appellant Jennifer A.

MacLellan, for the respondent Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act . PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION.

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111.

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. Reasons for judgment : INTRODUCTION [ 1 ] R.V.F. is the appellant. He is a young person as defined in the Youth Criminal Justice Act , S.C. 2002, c. 1.

R.V.F. pled guilty to a charge of being the occupant of a motor vehicle in which he knew there was a firearm, contrary to s. 94(1) of the Criminal Code . Various other charges were discontinued. Section 94(1) is a hybrid offence. This means the Crown had the right, and duty, to choose to proceed by indictment or by

summary conviction. At no point during the proceedings did the Crown do so. [ 2 ] At the sentence hearing, the Crown sought a sentence of 18 months custody and supervision, less credit for time spent in pre- trial custody. The defence argued that absent an express election to proceed by indictment by the Crown, the usual rule applicable in adult criminal procedure applies, resulting in a

summary conviction process with a consequent maximum sentence of custody and supervision of six months. [ 3 ] After argument, the trial judge was convinced that even absent an express election, the Crown had proceeded by indictment. Accordingly, he sentenced the appellant to 14 months custody and supervision. Once credit was given for time spent in pre-trial custody, the net sentence was four months secure custody and two months community supervision. [ 4 ] The appellant appeals to this Court on the basis that the trial judge erred in concluding that the Crown had proceeded by indictment.

If the trial judge erred, the appellant says the custodial sentence of 14 months is far in excess of the maximum permitted for a

summary conviction offence. He argues that this maximum is dictated by the interplay between certain sections of the Youth Criminal Justice Act ( YCJA ) and the Criminal Code . [ 5 ] The Crown contends the trial judge made no error in concluding in the circumstances that the offence was being prosecuted by indictment. Furthermore, it says that even if the procedure were

summary, with the correct

interpretation of the interplay between the YCJA and the Criminal Code , the sentence imposed is unassailable. [ 6 ] An appeal is a statutory creation. Absent a statutory provision, no court has any jurisdiction to entertain an appeal. Prior to the hearing of this appeal, we invited the parties to review a number of cases and make submissions on the issue of our jurisdiction to hear this appeal. They did so. Unfortunately, despite the interesting substantive issues raised by this proposed appeal, I am of the view that, in these circumstances, this Court is without jurisdiction to hear this appeal.

Accordingly, I would dismiss the application for leave to appeal. I will explain. [ 7 ] To put the following reasons in context a few additional details are helpful. BACKGROUND [ 8 ] On May 28, 2010 the appellant appeared in Youth Court. There was a five- count information regarding events that occurred on May 27, 2010. He was also alleged to have breached a deferred custody and supervision order by failing to report as required. The underlying facts of the alleged offences are not material. What is relevant is what happened in Court in relation to the various charges.

[9] The Crown was opposed to the release of the appellant. Four of the five counts of the Information were hybrid offences. Theother was indictable. The defence raised the issue of the election to be made by the Crown, to which the Crown responded: We’d ask to adjourn...It’s probably going to be by Indictment, Your Honour, but I am going to ask to adjourn it, please. [10] On June 1, 2010 the Court asked the Crown about the issue of its election. The Crown again requested election to beadjourned. The return date was June 17, 2010. On the return date, nothing was said about election.

The information was endorsed bythe clerk that Crown election, plea and show cause were adjourned to July 22, 2010. [11] When the appellant appeared on July 22, 2010, pleas of not guilty were entered. Trial was set for two days commencingNovember 2, 2010. There was discussion about the existence of a replacement Information containing seven counts. Pleas andproceedings were transferred to the replacement Information. The replacement Information contained the same allegations, all arisingout of the events of May 27, 2010, adding two counts of possessing a weapon while prohibited (s. 117.01).

Again, only one charge wasindictable, the remainder were hybrid. [12] On the day of trial the appellant pled guilty to the hybrid offence of being an occupant of a motor vehicle knowing that therewas a firearm in the vehicle contrary to s. 94(1) of the Criminal Code. Both parties waived the requirement for a Presentence Report andwere prepared to deal with sentence immediately. The Crown submitted that the maximum sentence permitted under the YCJA was twoyears and recommended a custody and supervision order of 18 months, less credit for time spent on remand.

The defence objected thatthe maximum sentence under the YCJA was not two years, but six months due to the stricture found in s. 38(2)(

a) limiting thepunishment for a young person to be not greater than for an adult – which is generally six months (s. 787(1) Criminal Code) for asummary conviction offence. Shortly thereafter, the Crown conceded that indeed no formal election was made by the Crown to proceedby indictment. Time was requested to prepare and make submissions. [13] Argument was presented on November 3, 2010. On November 5, 2010 the trial judge, the Honourable Judge Timothy Gabriel,gave an oral decision concluding that in the circumstances, the Crown had proceeded by indictment. His reasons were subsequentlyreported (2010 NSPC 88).

Since I am of the opinion that this Court does not have the jurisdiction to entertain the appeal, I will notreview in detail the reasons of Judge Gabriel beyond what is required to explain why his view that the Crown had proceeded byindictment does not trump a clear statutory direction in the YCJA, (which I will set out later), that this appeal does not lie to this Court. ANALYSIS [14] The

Interpretation Act, R.S.C. 1985, c. I-21 directs that: 34.

(1) Where an enactment creates an offence,

a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence byindictment; [15] In adult court, it is generally accepted that silence by the Crown as to mode of procedure, followed by the entry of guilty or notguilty pleas leads to the conclusion that the Crown proceeded summarily. (See Nisgard v. The Queen et al (1956), (ABCA), 114 C.C.C. 113 (Alta. C.A.); R. v. Robert (1973), (ON CA), 13 C.C.C. (2d) 43, [1973] O.J. No. 400 (C.A.); R.v. Mitchell (1997), (ON CA), 121 C.C.C. (3d) 139 (Ont.

C.A.) This may be based on the premise that if the processwere by indictment, the accused would have had an election as to the court in which he or she wanted to be tried. With respect toabsolute jurisdiction offences, it may simply be viewed as resolving ambiguity in favour of the accused. Nonetheless, silence by theCrown, and defence entry of pleas without being put to an election, is not determinative.

Circumstances such as the presiding judgeputting the right of election to an accused or where the information would be a nullity if the Crown proceeded summarily may permit anattribution of election by indictment. (See R. v. Shea (1976), (NS CA), 16 N.S.R. (2d) 706 (C.A.); R. v. M.B. (1997), (BC CA), 97 B.C.A.C. 83.)

[16] Some of these principles were touched on by Cromwell J.A. (as he then was) in R. v. Paul-Marr, 2005 NSCA 73. Thirtycharges covered 10 allegedly wrongful acts. On each charge, the Crown had the right to elect to proceed summarily or by indictment. Ifby indictment, the accused had the right to elect her mode of trial. Twenty charges were within the absolute jurisdiction of the provincialcourt. The Crown was silent. Pleas of not guilty were entered. The appellant was convicted of some of the charges. She appealed.

Despite the agreement of Crown and the appellant that the Crown should be deemed to have elected to proceed summarily, CromwellJ.A. disagreed. He accepted that the usual approach to silence by the Crown followed by entry of pleas will lead to the conclusion thatthe process was

summary: [20] This

section [s.34(1)] means that where an offence may be prosecuted by either indictment or on

summary conviction at theelection of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of

summary conviction: see e.g.R. v. Boutilier (1995), 1995 NSCA 227 , 147 N.S.R. (2d) 200; N.S.J. No. 540 (Q.L.) (C.A.) at para. 19; R. v. Mitchell (1997), (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.) at para. 4. All of the charges on this information fall into this categoryand, therefore, are deemed by

section 34 to be indictable until the Crown elects otherwise. [21] Generally, the Crown will elect expressly and the election will be noted on the information. However, even if it does notexpressly elect, the Crown may be deemed to have elected – in effect will have an election attributed to it – by virtue of the way theproceedings were actually conducted. [22] So, for example, in R. v. Robert (1973), (ON CA), 13 C.C.C. (2d) 43 (Ont. C.A.), the Crown failed to electas to the mode of procedure in the case of an offence which, at the Crown's election, could be proceeded with indictably or summarily.The case proceeded to trial without objection in the

summary conviction court. The Ontario Court of Appeal held that, in thesecircumstances, the Crown should be deemed to have elected to proceed summarily. This principle from Robert was cited with approvalby this Court in R. v. Shea (1976), (NS CA), 16 N.S.R. (2d) 706; [1976] N.S.J. No. 417 (Q.L.) (S.C.A.D.) at para. 9,although it was found not to be applicable in the circumstances there present. [23] The same principle may result in a deemed Crown election of indictable procedure. In R. v. Tommy, [1989] B.C.J.

No. 2207(Q.L.) (C.A.), the Crown did not expressly elect the mode of procedure, but did not object when the presiding judge gave the accused herelection as to mode of trial. That step, of course, is consistent only with the Crown proceeding by indictment. The accused elected trialby Provincial Court judge and then pleaded guilty.

The Court found that there should be a deemed Crown election of indictableprocedure, .... [17] The circumstances that led Cromwell J.A. to conclude that the Crown had not proceeded summarily were: 1) the informationspecified the indictable version of the charges; and 2) the majority of the charges would be time barred as being outside the six monthlimitation period. He summed up his reasoning as follows: [32] It is sensible and just to infer or deem the Crown to have made a particular election when that election is clear from whatactually happened.

It is also appropriate to interpret ambiguous situations in favour of the accused as mentioned in Mitchell. I do notdoubt the principle of the cases such as Robert, Tommy and Mitchell. However, deeming a Crown election for

summary procedure inthe circumstances of this case would not be giving effect to the substance of the situation in order to cure a technical oversight. Norwould it be giving the appellant the benefit of the more favourable

interpretation of an ambiguous set of circumstances. The effect herewould be to deem the Crown to have made a nonsensical choice which, according to a substantial body of authority, was itself a nullity.That I am not prepared to do. The fact is the Crown did not elect and the way the proceedings were actually conducted is not consistentwith any rational election that it could have made. I do not understand the Robert case and the cases following it to require us to infer aCrown election where none is consistent with the way the case actually proceeded. [33] I conclude that it is not appropriate to attribute an election of

summary procedure to the Crown in the circumstances of this case.The characterization of the charges is, therefore, governed by the

Interpretation Act provision: all of the counts are to be consideredindictable offences. The appellant, therefore, had a right of election on all of the counts on which the judge entered convictions. No suchelection was put to the appellant. It is not suggested (nor in my view could it be) that the appellant waived that right. [18] All of the convictions were quashed as nullities. [19] In this case, the trial judge referred to some of the authorities mentioned above. He correctly observed that proceedings underthe YCJA are procedurally distinct than in adult court. There is only a limited possibility of a different trial procedure available with

respect to a young person (see s. 67). The judge relied on four factors to reach his conclusion that in the circumstances before him, the presumption found in s. 34(1) (

a) of the

Interpretation Act had not been displaced. These were: the seriousness of the circumstances surrounding the commission of the offence; the previous record of the youth; the fact the Crown had said they were probably proceeding by indictment; prior to pleading guilty the young person was advised by the Crown that they would be seeking a custody and supervision order of 18 months less credit for time spent on remand; and his view that proceeding by indictment did not prejudice the accused. [ 20 ] He summed up his analysis in the following paragraphs: [28] Up to the date on which the plea was entered in this case (and the

section 36 finding was made) nothing had been done that would be discernible from the process followed that could lead anyone to believe that the Crown had negated the effect of section 34(1) of the

Interpretation Act . This is consistent with the approach taken in cases like Dudley , Mitchell , Paul-Marr , Coupland and others. We don’t adopt a rigid formalistic process when we’re dealing with these things. We look at the entire circumstances of the case to determine whether an election should be imputed to the Crown based on what has happened to date. [29] The rationale for this is obvious. We can’t have an accused being misled or prejudiced by conduct of the Crown which is indicative of a

summary process and then being blindsided by an attributed election of indictment. [30] In this case, there is nothing about the process from which the accused or defence could have inferred or, to put it differently, by which the Crown should be deemed to have proceeded summarily. In these circumstances, it has therefore proceeded by indictment. [31] Does this ruling create prejudice to the accused? I have concluded that it does not.

The seriousness of the circumstances of the offence alleged, combined with Crown counsel having told the defence prior to plea that he would be seeking a sentence of 18 months, and the fact that it had been indicated to defence and the court at an earlier appearance that the Crown was “probably” proceeding by way of indictment, all support this conclusion. There was nothing from the process, the way it unfolded or from what was available or appears to have been available to the defence from which the accused could have concluded that the Crown was proceeding summarily.

In short, there was nothing to displace the provision of section 34(1) (

a) of the

Interpretation Act . [ 21 ] Because he found the Crown to have proceeded by indictment, the maximum sentence that could be imposed for an adult convicted of an offence under s. 94(1) of the Code was one of 10 years, rather than six months if by

summary conviction. The learned trial judge therefore did not have to consider whether, or to what extent, section 38(2)(

a) modified the two-year maximum for a custody and supervision order specified in 42(2)(n), or the import of s. 50(2) of the YCJA . [ 22 ] Although, generally speaking, the decision by the Crown with respect to election on hybrid offences may not have an immediate impact on how the proceedings in Youth Court are conducted, it does have import on other issues. Without attempting to be exhaustive, it can impact on sentence (s. 39(1)(c)), the appeal process (s. 37), and access and retention of a Youth Record (s.121). It is with respect to the effect of the Crown election on the appeal process that I will now turn. [ 23 ] The YCJA provides: 37.

(1) An appeal in respect of an indictable offence or an offence that the Attorney General elects to proceed with as an indictable offence lies under this Act in accordance with

Part XXI (appeals — indictable offences) of the Criminal Code , which Part applies with any modifications that the circumstances require. ...

(5) An appeal in respect of an offence punishable on

summary conviction or an offence that the Attorney General elects to proceed with as an offence punishable on

summary conviction lies under this Act in accordance with

Part XXVII (summary conviction offences) of the Criminal Code , which Part applies with any modifications that the circumstances require.

(6) An appeal in respect of one or more indictable offences and one or more

summary conviction offences that are tried jointly or inrespect of which youth sentences are jointly imposed lies under this Act in accordance with

Part XXI (appeals — indictable offences) ofthe Criminal Code, which Part applies with any modifications that the circumstances require.

(7) For the purpose of appeals under this Act, if no election is made in respect of an offence that may be prosecuted by indictment orproceeded with by way of

summary conviction, the Attorney General is deemed to have elected to proceed with the offence as anoffence punishable on

summary conviction. [24] This is an appeal from sentence. The appellant relies solely on s. 37(1) of the YCJA as authority for this Court to entertain theappeal. Ironically, he then seeks to argue that the proceedings were

summary. In any event, in my opinion, s. 37(7) is clear as to whathappens where the Crown has not made an election to proceed by indictment or by

summary conviction. The process is deemed to havebeen

summary for purposes of appeals by the Crown or the young person. Hence, the right to appeal, in these circumstances, is to thesummary conviction appeal court, the Nova Scotia Supreme Court. [25] This conclusion is driven by two things: ordinary principles of statutory

interpretation, and prior decisions of this Court thataddressed identical language in the Young Offenders Act, R.S.C. 1985, c. Y-1. Before turning to these, it is important to repeat that theright to appeal to any particular court is purely a statutory creation. There is no inherent jurisdiction in this or any court to entertain anappeal in a civil or criminal case (see Welch v. The King, (SCC), [1950] S.C.R. 412; Miltzer v. R., (SCC),[1989] 1 S.C.R. 1764; Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53; R. v.

Waugh, 2009 NBCA 23). [26] The issue is what is the meaning of the phrase in s. 37(7) of the YCJA, that where there has been no election, the Crown is“deemed to have elected to proceed with the offence as an offence punishable on

summary conviction”. [27] When a statute uses the word “deems” it is clear that it can have different meanings. Sullivan on the Construction of Statutes,5th ed. (Markham, ON: LexisNexis, 2008) (pp. 85 et seq.) discusses the various meanings that can be attributed to a legislature’s use of“deems”. Generally, it can be used to create a legal fiction – a given fact ‘x’ is declared to be ‘y’ for some or all purposes. It can be usedto create a presumption that may be conclusive or rebuttable by demonstrating otherwise, or to declare the law.

If the presumption is notrebuttable, it is indistinguishable from Parliament’s use of the word to create a legal fiction (p. 89) . [28] In St. Leon Village Consolidated School District v. Ronceray et al (1960), (MB CA), 31 W.W.R. 385, [1960]M.J. No. 29, the Manitoba Court of Appeal speaking through Schultz J.A., said (pp. 389, 391): What this court has to consider in regard to the

interpretation of the words “shall be deemed to be dismissed” is not the type ofinterpretation, i.e., whether literal or liberal, but the meaning of these words as used in the Act. The words “deem”, “deemed”, and “shallbe deemed” when used in statutes usually imply an element of finality, but that meaning is not inflexible or invariable. In some casesthese words, or words of identical import, are construed to establish a conclusive presumption. Thus in Shepherd v.

Broome, [1904] AC342, the House of Lords held that the conduct of the director of a limited company, who knew that a prospectus issued by the companydid not disclose a contract which was in fact material but which he was advised and honestly believed was not material, must be “deemedto be fraudulent”, although there was in fact no fraud, but that because the statute provided what he had done “shall be deemed” to befraudulent it must therefore be so found. . . .

I think a consideration of these cases indicates that in deciding whether or not the use of the words “deem” or “deemed” establishes aconclusive or a rebuttable presumption depends largely upon the context in which they are used, always bearing in mind the purpose tobe served by the statute and the necessity of ensuring that such purpose is served. (Quoted with approval by this Court in Imperial Oil Ltd. v. Board of Commissioners of Public Utilities (1974), (NSCA), 10 N.S.R. (2d) 415, [1974] N.S.J. No. 273.) See also Coates v. Capital District Health Authority, 2011 NSCA 4.

[29] What then did Parliament mean when it used the expression “is deemed” to have elected in s. 37(7)? A word or phrase shouldnot be examined in isolation, but in context and in accord with the recognized principles of statutory

interpretation. The correct approachto statutory

interpretation is straightforward and oft repeated. Recently in Cape Breton (Regional Municipality) v. Nova Scotia (AttorneyGeneral), 2009 NSCA 44, MacDonald, C.J.N.S. wrote: [36] The Supreme Court of Canada has endorsed the “modern approach” to statutory

interpretation as expounded by Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005SCC 30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. See also: Coates v. Capital Health District Authority, 2011 NSCA 4; Nova Scotia (Health) v.

Morrison Estate, 2011 NSCA 68, at para.14 [30] In my opinion, the intent of Parliament in enacting s. 37 was to create a complete code to easily determine which appeal courthad jurisdiction to hear appeals from Youth Court proceedings. Indictable offences were appealable to the Court of Appeal;

summaryoffences to the

Summary Conviction Appeal Court; where the matters to be appealed included both indictable and

summary, to the Courtof Appeal; in the case of hybrid offences where there was no election by the Crown, the offences are conclusively determined to besummary conviction for the purposes of directing the parties which court would have jurisdiction to hear an appeal. To concludeotherwise would fly in the face of the ordinary meaning of the words, the context in which they were used, and the object of the sectionsand obvious intent of Parliament to create an easily understood method of determining how a party, dissatisfied with a proceeding inYouth Court, should proceed. [31] The deeming provision in s. 37(7) is to be contrasted with the deeming provision in s. 34(1)(

a) of the

Interpretation Act. Forease of reference, I will repeat it. It provides: 34.

(1) Where an enactment creates an offence, (

a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence byindictment; [32] It is easy to see that this presumption is a rebuttable one. It lasts only until the Crown elects, or is found to have elected, toproceed summarily (see R. v. Dudley, 2009 SCC 58). If it were otherwise, there could never be a hybrid offence that was anything otherthan an indictable offence. Such an

interpretation would be absurd, rendering meaningless the duty and right of the Crown to elect toproceed summarily. It would also be out of harmony with the rest of s. 34 of the

Interpretation Act, which provides: (

b) the offence is deemed to be one for which the offender is punishable on

summary conviction if there is nothing in the context toindicate that the offence is an indictable offence; and (

c) if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on

summaryconviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of theoffence on

summary conviction. [33] I turn to the decisions by this Court that considered similar language in the Young Offenders Act (YOA). The YOA was thepredecessor legislation to the YCJA. It contained a virtually identical provision on appeal rights where the Crown failed to make anelection on an hybrid offence. It provided:

27(1) An appeal lies under this Act from a finding of guilt, an order dismissing an information or a disposition made under

section 20, (

a) in the case of an indictable offence or an offence that the Attorney General or his agent elects to proceed with as an indictableoffence, in the same manner as if the finding of guilt were a conviction, the order dismissing the information were a verdict of acquittalor the disposition were a sentence, in a prosecution by indictment in ordinary court; and (

b) in the case of an offence punishable on

summary conviction or an offence that the Attorney General or his agent elects to proceedwith as an offence punishable on

summary conviction, in the same manner as if the finding of guilt were a conviction, the orderdismissing the information were an order dismissing the information or the disposition were a sentence, in proceedings by way ofsummary conviction in ordinary court.

(2) For the purpose of appeals under this Act, where no election is made in respect of an offence that may be prosecuted by indictment orproceeded with by way of

summary conviction, the Attorney General or his agent shall be deemed to have elected to proceed with theoffence as an offence punishable on

summary conviction. [34] In R. v. G.P.S., [1985] N.S.J. No. 267 (C.A.), a young offender sought to appeal sentence for a

summary and two hybridoffences. The Crown conceded that there was no indication on the record that the Crown elected to proceed by indictment. Jones J.A.,for the Court observed: 4 It is clear from the provisions of s. 27(2) of the Act that this Court has no jurisdiction to proceed with the hearing of this appealand accordingly it is dismissed. It will be necessary for the appellant to apply for an extension of time in the County Court under s.750(2) of the Criminal Code. [35] Similarly, in R. v. S.(R.W.), [1986] N.S.J.

No. 211 (C.A.), the appellant sought to appeal a nine month sentence imposedfollowing conviction. He had been arraigned with two other young persons. The Crown stated its election to proceed by indictment withrespect to the first, but said nothing with respect to the appellant. The trial judge endorsed the information that the Crown had proceededby indictment. At the sentencing hearing, defence counsel contended that the offence was

summary as the Crown had not elected toproceed by indictment. The Crown conceded that he could not recall one way or the other. Macdonald J.A., for the Court concluded: We have thoroughly reviewed the record and are not satisfied that the Crown prosecutor indicated or elected with that degree of clarityand certainty that justness and fairness demand that the

summary offence charged against the appellant was going to be proceeded withby way of indictment. We have therefore concluded that the charge set forth in the information was proceeded with by way of

summaryconviction. The sentence of secure custody of nine months is therefore illegal but, unfortunately, this Court has no jurisdiction toentertain

summary conviction appeals in the first instance. If the appellant wishes to pursue an appeal in this matter, he must apply to the County Court for an order extending the time in which tofile and serve a notice of appeal. In our opinion, such application under the particular circumstances of this case should have a reasonablechance of success. Solely, then, for the jurisdictional reasons given, this appeal is dismissed. [36] The Crown relies on decisions of the Ontario Court of Appeal in R. v. B.(I) (1994), (ON CA), 20 O.R. (3d)341, and the British Columbia Court of Appeal in R. v.

M.B. (1997), (BC CA), 97 B.C.A.C. 83 for the propositionthat jurisdiction can still be found for a provincial Court of Appeal, in first instance, to entertain an appeal from hybrid proceedings underthe YOA despite no express election by the Crown to proceed by indictment. Whatever may be the merit of those decisions in the face ofrepeated statutory direction by Parliament about how jurisdiction is to be decided, the facts in those cases bear no relation to whathappened in this case. [37] In each of those cases, the Information was sworn more than six months after the subject matter of the proceedings.

Hence, thealleged offences could not have proceeded by

summary conviction. The Crown could not have done anything other than have proceededby indictment. That is not the case here. The replacement Information was sworn in July 2010 in relation to events that occurred in May

2010. [ 38 ] The Crown was given every opportunity to announce how it was electing to proceed. It did not. The Crown conceded at trial that it had not made any election. The Crown on appeal conceded this as well, but argued because the trial judge determined the proceedings were by indictment, this was sufficient to say an election had been made by the Crown within the meaning of s. 37. I am unable to agree. [ 39 ] What led the trial judge to his conclusion the proceedings were by indictment was that there was nothing in the circumstances to displace the presumption created by s. 34(1) (

a) of the

Interpretation Act that the offence was indictable. I make no comment on the correctness of the analysis or conclusion of the trial judge. [ 40 ] It is sufficient to say, that the trial judge’s conclusion, based as it was, on s. 34(1) (

a) of the

Interpretation Act , cannot confer jurisdiction on this Court in light of the clear specific statutory direction set out in s. 37(7) of the YCJA that for purposes of an appeal under the Act , absent an election to proceed by indictment on a hybrid offence, the Crown is deemed to have elected to proceed summarily. The Crown in fact made no such election. It was silent. By s. 37(7) and (5), an appeal from sentence is to the

Summary Conviction Appeal Court. As a consequence, I would dismiss the application for leave to appeal. [ 41 ] I think it worthwhile to say that where people charged with responsibility fail to discharge it there are consequences. Where the Crown fails to exercise its statutory obligation to make its election in a timely fashion as to mode of procedure, the consequence is frequently confusion and unnecessary litigation. The comment by Fish J. in R. v.

Dudley , supra bears repeating: [19] To avoid uncertainty and the misunderstanding of which much unnecessary litigation is born, I think it best for the Crown to declare explicitly whether it is proceeding on a hybrid offence summarily or by indictment before the accused is asked to plead.

And where the Crown elects to proceed summarily beyond the six-month limitation period, the prosecutor and the defendant should both be required to declare expressly – again, before plea – that they agree to proceed summarily. [Emphasis in original] [ 42 ] No explanation was offered to Judge Gabriel, or in this Court, why the Crown had failed to declare how it was proceeding. Obviously had it made its election, much legal uncertainty and consequent waste of resources would have been avoided. Beveridge, J.A. Concurred in: MacDonald, C.J.N.S. Bryson, J.A.